Minneapolis, St. P., R. & D. Elec. Traction Co. v. City of Minneapolis

• Decision Date: 27 February 1914
• Citation: 145 N.W. 609,124 Minn. 351
• Court: Minnesota Supreme Court
• Parties: MINNEAPOLIS, ST. P., R. & D. ELECTRIC TRACTION CO. v. CITY OF MINNEAPOLIS.

124 Minn. 351

145 N.W. 609

MINNEAPOLIS, ST. P., R. & D. ELECTRIC TRACTION CO.

v.CITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

Jan. 23, 1914.

On Motion for Reargument, Feb. 27, 1914.

Appeal from District Court, Hennepin County; Charles S. Jelley, Judge.

Action by the Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Company against the City or Minneapolis. Judgment for plaintiff, and defendant appeals. Reversed.

Syllabus by the Court

The city of Minneapolis has no power to enter into a contract with a company operating a commercial railway, by which the city agrees to bear part of the expense of strengthening a city bridge which the railway company desires to cross with its cars, where the bridge is already of sufficient strength and construction to accommodate general travel, and the sole purpose of the improvement is to permit the operation of such railway cars thereover.

Plaintiff desired to cross this bridge in order to meet the line of the Minneapolis Street Railway Company. The city, in lieu of permitting the plaintiff to cross the bridge, directed the City Railway Company to extend its line across the bridge to plaintiff's terminus. The public also has used the bridge for general travel. These facts impose no liability upon the city, since the contract was beyond the corporate power of the city and was not susceptible of ratification, but was wholly void. Daniel Fish, of Minneapolis, for appellant.

M. H. Boutelle and A. M. Higgins, both of Minneapolis, for respondent.

HALLAM, J.

Plaintiff operates an ordinary commercial electric railway and is engaged in carrying passengers and freight between Minneapolis and various points south. In 1907 its Minneapolis terminus was at Nicollet avenue and Fifty-Fourth street at the southerly limits of the city. The street cars of the Minneapolis Street Railway Company ran upon Nicollet avenue to Fiftieth street. Plaintiff desired to extend its line on Nicollet avenue to Fiftieth street to connect with the street car line. Between Fifty-Second and Fifty-Fourth streets, Nicollet avenue crosses Minnehaha creek, over which the city some years ago constructed a public foot and wagon bridge. This bridge was not strong enough to permit the operation of either plaintiff's cars, or street cars, but the complaint alleges and the court finds that it was ‘of sufficient construction and strength to accommodate ordinary foot and wagon traffic, * * * and required * * * neither strengthening nor reconstruction for any other purpose than that of permitting the laying of tracks and the operation of cars. * * *’ About December 1, 1907, plaintiff applied to the city council of Minneapolis for an appropriation of $10,000 for reconstructing and strengthening said bridge; ‘the sole and only object’ being ‘to permit the operation of the cars of plaintiff thereover.’ On January 10, 1908, the city council passed a resolution directing the city engineer to hire men and purchase material to strengthen the bridge, at a cost not to exceed $2,500. About March 15, 1910, the city engineer entered into a contract with plaintiff by which it was agreed that plaintiff should reconstruct the bridge with steel construction, at a cost of approximately $9,000, and that the city should pay plaintiff the sum of $2,500. Thereupon plaintiff reconstructed the bridge. Ever since its completion the bridge has been used as a public thoroughfare. At the times mentioned plaintiff had received no permission from the city to occupy Nicollet avenue. After completion of the bridge no such permission was granted to plaintiff, but, ‘in lieu thereof,’ the city ordered the Minneapolis Street Railway Company to extend its tracks from Fiftieth street across the bridge to Fifty-Fourth street, to a point of connection with plaintiff's line.

[1] This is not the case of an improvement needed for the double purpose of railroad use and general public travel. The question in the case is this: Has the city council of Minneapolis the power to appropriate money to aid in reconstructing a bridge upon a street of the city where the existing bridge is sufficient for all purposes of general travel, and where the sole purpose of the improvement is to permit the laying of tracks and the running of cars of an ordinary commercial railway. We hold that the city council has no such power.

[3] Plaintiff is in no sense a street railway. It carries no passengers from street to street within the city, but, with the city as a terminus, it operates from place to place, stopping and gathering business only at terminal or regular way stations. It is not an aid to travel upon a street. If it occupies a street it is an impediment only to street travel. State v. Duluth Gas & Water Co., 76 Minn. 96, 107, 78 N. W. 1032,57 L. R. A. 63. It differs in no essential principle from the ordinary steam railway of commerce. The fact that its motive power is electricity instead of steam is of no consequence.

A commercial railway has no right to construct its tracks along city streets without the consent of the city. G. S. 1913, § 6136. It cannot acquire such right even under the power of eminent domain. Duluth Terminal Ry. Co. v. Duluth, 113 Minn. 459, 130 N. W. 18. The duties and obligations of a commercial railway company when it is permitted to occupy a public street with its tracks are well defined. It must fully restore the street to as serviceable a condition for public travel as existed before its tracks were laid. 2 Elliott, Roads & Streets, § 1056; 3 Elliott, Railroads, § 1105; State v. St. P., M. & M. Ry. Co., 35 Minn. 131, 28 N. W. 3,59 Am. Rep. 313;People v. Chicago & Alton R. Co., 67 Ill. 118;State v. Lake Koen N. R. & I. Co., 63 Kan. 394, 65 Pac. 681;Indianapolis & Cincinnati R. Co. v. State, 37 Ind. 489;Chicago & Erie R. Co. v. Luddington, 175 Ind. 35, 91 N. E. 939,93 N. E. 273;State v. Hannibal & St. J. R. Co., 86 Mo. 13. If such restoration requires the construction of a bridge over its tracks, it is the uncompensated duty of the railroad company to construct such bridge (1 Elliott, Roads & Streets, § 48; C., I. & W. Ry. Co. v. City of Connersville, 218 U. S. 336, 31 Sup. Ct. 93, 54 L. Ed. 1060,20 Ann. Cas. 1206;Maltby v. Chicago & W. Mich. Ry. Co., 52 Mich. 108, 17 N. W. 717;State v. Minnesota Transfer Ry. Co., 80 Minn. 108, 83 N. W. 32,50 L. R. A. 656; C., M. & St. P. Ry. Co. v. Minneapolis, 115 Minn. 460, 133 N. W. 169, Ann. Cas. 1912D, 1029), and to maintain it (State v. Minnesota Transfer Ry. Co., 80 Minn. 108, 83 N. W. 32,50 L. R. A. 656). If the demands of traffic require that the bridge be later enlarged, the railroad company must bear the burden of enlarging it. C., B. & Q. Ry. Co. v. Illinois, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 598,4 Ann. Cas. 1175;Indiana v. Lake Erie & W. Ry. Co. (C. C.) 83 Fed. 284. If the necessities of public travel require the opening of a street through its right of way, it must in like manner bridge the street so opened if public safety demands it. C., I. & W. Ry. Co. v. City of Connersville, 218 U. S. 336, 31 Sup. Ct. 93, 54 L. Ed. 1060,20 Ann. Cas. 1206; C., M. & St. P. Ry. Co. v. Minneapolis, 115 Minn. 460, 133 N. W. 169, Ann. Cas. 1912D, 1029. These are common-law duties. If the railroad company fails in the discharge of any of these duties, the city may perform them and recover the expense. Chicago v. Pittsburg, C., C. & St. L. R. Co., 146 Ill. App. 403. ‘This duty is founded upon the equitable principle that it was their act done, in pursuit of their own advantage, which rendered this work necessary, and therefore they, and not the public, should be burdened with its expense.’ State v. St. P., M. & M. Ry. Co., 35 Minn. 131, 133, 28 N. W. 3, 5 (59 Am. Rep. 313).

[4] The city has no power, in the absence of legislative authority, to appropriate money in aid of railroad building. 2 Elliott, Railroads, §...